The jurisdiction of the Civil Court to entertain a suit for specific performance of an agreement to sell land by a landholder in favour of his protected tenant is not ousted by the provisions of the Hyderabad Tenancy Act.

JUDGMENT - 1. This is a revisional application under Section 115 of C.P. C., 1908. The respondent filed a suit against the petitioners herein in the Court of the Civil Judge, Senior Division, Nanded, being Regular Civil Suit No. 88 of 1963 for specific performance of a contract of sale in respect of the suit land with a direction to petitioner No. 1 to obtain permission form the Deputy Collector for transfer of the suit land. The case of the respondent was that petitioner No. 1 was the owner of the suit land and petitioner No. 2 claimed to be his adopted son. The respondent was a protected tenant on the said land. Initially, an agreement of sale was entered into in favour of the respondent on 9th June 1958. Petitioner No. 1 backed out this agreement and started resumption proceedings under the Hyderabad Tenancy and Agricultural Lands Act. 1950 (hereinafter referred to as the Hyderabad Tenancy Act.) Ultimately a fresh agreement of sale in writing was entered into on 26th March 1959 where by petitioner No. 1 agreed to sell the suit land to the respondent for Rs. 4,8000. The petitioner No. 1 failed to carry out this agreement and hence the respondent filed the suit.

2. Petitioners Nos. 1 and 2 raised several defences in their written statements. It was inter alia contended by them that the Court of the learned Civil Judge had no jurisdiction to try the suit. Issue Nos. 4 and 5 framed by the learned Civil Judge were directed to be treated as preliminary issues. These issues were as follows:

"4. Whether the suit for possession is maintainable in view of Section 32 and 44 of the Hyderabad Tenancy Act as the possession is already given by the revenue authorities to the defendant No. 1.

5. Whether the plaintiff can be asked to obtain a sale certificate under Section 47 of the Hyderabad Tenancy Act. When the original contract was about obtaining sale certificate under Section 28 of the Hyderabad Tenancy Act."

Curiously enough, although the preliminary issues raised were as set out above, the judgment of the learned Civil Judge is concerned mainly with the question as to whether the Court had jurisdiction to entertain the suit. By his judgment and order dated 16th October 1964 the learned Civil Judge held that he had no jurisdiction to entertain the suit, in view of the provisions of Section 99 of the Hyderabad Tenancy Act, and he directed the plaint to be returned to the respondent for presentation to the proper Court..

3. Being aggrieved by the decision of the learned Civil Judge, the respondent filed an appeal being Miscellaneous Civil Appela No. 34 of 1964, which was disposed of by the learned Assistant Judge by his judgment and order dated 9th November 1970 allowed the appeal diction to entertain the suit and decide it according to law. He, therefore, remanded the suit to the trial Court. It is Judge decision of the learned Assistant Judge which is challenged before me in this revisional application.

4. I may make it quite clear that although the two issues tried by the learned Civil Judge as preliminary issues were as set out earlier, the entire dispute in the Courts below as well as before me is on the question as to whether the Civil Court has jurisdiction to entertain the suit filed by the respondent.

5. It is common ground that the respondent was a protected tenant in respect of the suit land. It has also not been disputed before me that the question of jurisdiction as a preliminary issue must, in the present case, be decided on the basis of the avernments in the plaint.

6. The first contention of Mr. Parulekar, who appeared for the petitioners, was that in view of the provisions of Section 38-A of the Hyderabad Tenancy act, it was only the Agricultural Lans Tribunal or the Tenancy Court, which could entertain the suit filed by the respondent. The relevant portion of Section 38-A of the Hyderabad Tenency act reads as follows:

"If in respect of a land held by a protected tenant or, as the case may be ordinary tenant the landholder conse

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